17 March 2023

WorkSafe ACT to push for own prosecution powers to make independence complete

| Ian Bushnell
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WorkSafe ACT commissioner Jacqueline Agius lays a wreath in memory of beloved Ben Catanzariti who was killed in 2012 with his dad Barney, mum Kay and brother Jack.

WHS Commissioner Jacqueline Agius at a wreath-laying ceremony last year for Ben Catanzariti, who was killed on a Kingston construction site in 2012, with his father Barney, mother Kay and brother Jack. Photo: Lottie Twyford.

The ACT’s independent work safety watchdog will urge the government to give it the capacity to initiate court proceedings but has stopped short of calling for its own prosecution unit as recommended by a review finalised last year but only released in full today (16 March).

The review by Marie Boland found that the current system of the Director of Public Prosecutions (DPP) acting on behalf of the WHS Commissioner via the referral of briefs of evidence was at odds with the government’s vision for an independent, agile, and exemplary work, health and safety regulator.

“Providing the WHS Commissioner with the authority to decide whether to prosecute for WHS law breaches and with the flexibility to choose where to seek prosecution advice is the final critical element required,” the review said.

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WorkSafe ACT said in its response to the review that the current system restricts the WHS Commissioner’s ability to improve safety culture and undermines the objective of creating safe workplaces across the Territory.

It rules out a WorkSafe prosecution unit as too costly for the size of the Territory and calls for a hybrid solution that would allow the WHS Commissioner to seek prosecution advice from external counsel without having to seek the approval of the ACT Solicitor-General.

It would also allow the WHS Commissioner to engage an external prosecutor to start proceedings against offenders, but any industrial manslaughter prosecutions would continue to be the province of the DPP.

WorkSafe ACT says this would align prosecutions with its strategic objectives of WorkSafe ACT and allow it to conduct test cases in emerging areas.

The model would mean WorkSafe ACT could pursue the recovery of legal costs and enhance the independence and accountability of the WHS Commissioner to initiate, manage and conduct prosecutions.

WorkSafe ACT would be able to initiate and manage matters from the moment an incident or alleged breach is notified to the regulator through to the final decision to prosecute the matter through the courts, as well as allow the WHS Commissioner to respond to emerging issues such as sexual harassment, bullying and occupational violence.

Jacqueline Agius

WHS Commissioner Jacqueline Agius: the community is right to expect prompt justice where a duty holder has been negligent. Photo: Ian Bushnell.

WHS Commissioner Jacqueline Agius said it was time to make positive changes to how prosecutions for WHS breaches in the ACT were conducted.

“While we are starting to see sentencing that better reflects the significance of breaches, more should be done by me, by WorkSafe and by the ACT Government,” she said.

“Injured workers, their families, their friends and the Canberra community are right to expect prompt justice where a duty holder has been negligent.

“Ms Boland found prosecutions in the ACT can be improved and how this can be achieved. We will make this commitment. We will conduct our investigations and our prosecutions in a way that does not add to the harm already done.

“But this is a shared responsibility, and I look forward to the ACT Government’s response to the Review recommendations and how we can work together to protect the health and safety of all workers in all workplaces.”

Ms Agius said the review contained 12 recommendations, four of which fell within the remit of WorkSafe ACT, which was committed to implementing these recommendations to ensure those who breach the laws were held to account.

The Conduct of Work Health and Safety Prosecutions Review was handed to WorkSafe ACT in June 2022. The recommendations were released on 10 July 2022, the 10-year anniversary of the workplace death of Ben Catanzariti on a Kingston construction site.

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The review found that it was not clear to the community how and why WHS prosecution decisions were made, leading to the belief that only a very serious incident resulting in a worker’s death, most likely in construction, would prompt a prosecution in the Territory.

It recommended WorkSafe ACT develop a prosecution policy that stated clearly how prosecution decisions were made, highlighting the breaches expected to result in prosecution action.

WorkSafe ACT says it has begun work on this policy, which should be completed in the first half of the year.

WorkSafe ACT became an independent entity in 2019 after a review recommended a shake-up amid concerns about its performance.

Since then, it has taken a more aggressive stance on workplace safety, particularly in the construction sector.

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